Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Williams [2020] NSWCCA 348 Hearing dates: 3 December 2020 Date of orders: 17 December 2020 Decision date: 17 December 2020 Before: Simpson AJA at [1]; Bellew J at [2]; Campbell J at [3]. Decision: Conditional bail granted Catchwords: CRIME – bail – appeals bail - release application – whether special or exceptional circumstances exist justifying release on bail – where applicant relies on a combination of factors to satisfy the test – where appeal has reasonably arguable prospects of success – where applicant has been unable to access medical treatment in custody – where applicant is a good candidate for bail – conditional bail granted Legislation Cited: Bail Act 2013 (NSW) ss 18, 22, 29, 59, 61 Crimes Act 1900 (NSW) ss 61I, 319 Criminal Appeal Rules 1952 (NSW) r 4 Criminal Procedure Act 1986 (NSW) ss 133, 294AA Evidence Act 1995 (NSW) s 165 Cases Cited: El-Hilli and Melville v R [2015] NSWCCA 146 Ewen v R [2015] NSWCCA 117 HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141 Petroulias v R [2010] NSWCCA 95 R v Giordano (1982) 31 SASR 241 R v Hilton (1987) 7 NSWLR 745 R v Murray (1987) 11 NSWLR 12 R v Southgate (1960) 78 WN (NSW) 44 R v Wilson (1994) 34 NSWLR 1 Re. Clarkson [1986] VR 583 United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Category: Principal judgment Parties: Michael Williams (Applicant) Regina (Crown) Representation: Counsel: Ms F K Graham (Applicant) Ms K Jeffreys (Crown) Solicitors: Ritchie Lawyers (Applicant) Office of the Director of Public Prosecutions (Crown) File Number(s): 2020/280948 Judgment 1. SIMPSON AJA: I agree with Campbell J. 2. BELLEW J: I agree with Campbell J. 3. CAMPBELL J: After a judge alone trial, on 21 May 2020 the applicant was convicted by his Honour Judge Priestley SC of two counts of sexual intercourse without the consent of the complainant knowing she was not consenting, contrary to s 61I Crimes Act 1900 (NSW). Two backup charges of indecent assault did not arise and he was acquitted of a charge of attempting to pervert the course of justice contrary to s 319 Crimes Act 1900 (NSW). He was sentenced to an aggregate term of imprisonment of 3 years commencing on 22 July 2020 and expiring on 21 July 2023, with a non-parole period of 1 year and 8 months which expires on 21 March 2022. 4. A Notice of Intention to Appeal against the applicant's conviction was filed on 13 October 2020 and a Notice of Appeal/Application for Leave to Appeal, on 8 September 2020. At call-over on 17 September 2020 the Registrar fixed the appeal for hearing on 15 February 2021. On 28 September 2020, the applicant filed an application for release on bail. Jurisdiction 1. There is no question that this Court has power in its original jurisdiction to hear and determine the applicant's release application under s 61 Bail Act 2013 (NSW) because "substantive proceedings", the appeal and application for leave to appeal, are pending in this Court within the meaning of s 59. However, the Court's power to grant bail is conditioned by the provisions of s 22 Bail Act which provides that a court is not to grant bail for an offence for which an appeal, inter alia, against conviction on indictment is pending in the Court of Criminal Appeal "unless it is established that special or exceptional circumstances exist that justify" bail. 2. In HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141 (at [24]) Hamill J (with the agreement of Bathurst CJ and Bell P) described the requirement of s 22(1) as "a significant hurdle". In El-Hilli and Melville v R [2015] NSWCCA 146 at [13] his Honour described the structure of s 22, like s 16A Bail Act which imposes the show cause requirement in respect of certain offences, as imposing a two stage test. First, "[t]he applicant for bail must demonstrate that special and exceptional circumstances exist". Secondly, the Court must be satisfied by application of the unacceptable risk test arising out of the provisions of Division 2 of Part 3 Bail Act, through an assessment of identified bail concerns in accordance with s 18, that there is no unacceptable risk that the applicant will: fail to appear; commit a serious offence on bail; endanger the safety of victims, individuals or the community; or interfere with witnesses or evidence. Hamill J pointed out that although the questions are separate, the same evidence and considerations may inform the decision at each stage. Frequently, but not always, the special and exceptional circumstances requirement will be the central question and a favourable outcome there will indicate that such risks as exist are not unacceptable. But it must be borne in mind that there are two separate questions, each of which must be addressed. The rationale underpinning the requirement for special or exceptional circumstances 1. Section 22 is a statutory embodiment of the requirement of the common law that "a person who seeks bail pending his appeal from conviction or sentence must establish special or exceptional circumstances": R v Hilton (1987) 7 NSWLR 745 at 746 (Street CJ); R v Southgate (1960) 78 WN (NSW) 44; R v Giordano (1982) 31 SASR 241 (King CJ). 2. The height of Hamill J's "significant hurdle" must be borne in mind throughout. In Re. Clarkson [1986] VR 583 at 584, the Full Court of the Supreme Court of Victoria wrote of "the difficulty of persuading the court that the circumstances put forward as special or exceptional are strong enough to overcome the powerful considerations of a general character which militate against the grant of bail pending appeal". 3. Some of those "considerations of a general character" were addressed by the High Court of Australia in United Mexican States v Cabal (2001) 209 CLR 165;[2001] HCA 60 at [39] – [40]. The Justices said of a grant of appeals bail: In determining whether to stay an order of imprisonment and give bail to the applicant or appellant, the court must consider not only the position of the applicant or appellant but also the position of the Crown. To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice. As Thomas J pointed out in Ex parte Maher [1986] 1 Qd R 303 at [310], to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned: makes the conviction appear contingent until confirmed; places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail; encourages unmeritorious appeals; undermines respect for the judicial system in having a "recently sentenced man walking free"; undermines the public interest in having convicted persons serve their sentences as soon as is practicable. Consequently, the doctrine of this Court is that in a criminal case an order granting bail will only be made if there are exceptional circumstances. Obviously, after conviction and sentence, the presumption of innocence has been rebutted and the general right to be at liberty has been abrogated by the passing of sentence. General circumstances of the offending 1. The offending is said to have occurred in the early hours of Sunday 24 June 2018. The applicant and the complainant had both attended a party at a private residence at Yamba on the evening before. They were among a small group who had stayed on well into the night. The complainant had worked on Saturday night, had drinks with friends afterwards and attended the party late. There was no question that she was significantly intoxicated by alcohol, as was the applicant. 2. The complainant fell into something of a stupor and friends put her to bed on a lounge in the living room of the premises. The applicant was seen by one of the complainant's friends before she left to sleep elsewhere attempting to join the complainant on the lounge. She told him to sleep elsewhere with which direction he apparently sought to comply. When witnesses aroused later in the morning the complainant and the applicant were both seen to be asleep on the lounge. 3. There were two basal issues at the trial. The first was whether any sexual intercourse had occurred at all between the complainant and anyone, and, the second, if so, the identity of the perpetrator. Any sexual intercourse, it seems, was taken to be non-consensual. 4. It was the Crown case, accepted by the trial judge, that at some stage during the early hours of the morning, the complainant awoke with a man on top of her who pulled down her jeans and underwear, touching and penetrating her vagina from behind, first digitally and then with his penis. The complainant tried to say no, but her voice was muffled because of the circumstances. She apparently fell back into a deep sleep. She did not see the man because it was dark, and he was behind her. 5. The trial judge approached the first issue as depending upon whether he was satisfied beyond reasonable doubt of the reliability of the account given by the complainant. The applicant chose to exercise his right to silence. The trial judge approached the second question of identity separately and as one to be determined by circumstantial, rather than direct evidence. 6. There was no forensic evidence confirming sexual intercourse. In particular the DNA evidence established male DNA on the complainant's underwear which was not the applicant's. Other results demonstrated DNA from more than one contributor. As I have said the major male contributor was not the accused and the DNA from minor contributors was not suitable for comparison. His Honour's finding in relation to this evidence was in the following terms: Judgment at [217]: The result of this testing is that there is a number of DNA contributions from males, with only one of them being unable to be identified as not being the offender. In other words, there is DNA contributions on the underwear from males and those contributions are such that it cannot be said that one or more of them is not the offender; that is that he has not been excluded by this report as a contributor. The offender has neither been identified as the contributor, nor excluded save for the one sample on the left side. 1. His Honour accepted the evidence of the complainant that she had been sexually assaulted and was persuaded beyond reasonable doubt on the basis of circumstantial evidence that the offender was the applicant. In this regard, he set out 11 circumstances at [228] of his judgment he considered had been established by the evidence, some of which were supported by a number of listed primary facts, assessing the probative value of each of them separately. One circumstance was the DNA evidence. Of this his Honour said at [228 (7)] the DNA "does not prove it is the accused, and it does not prove that it's not the accused". In the end his Honour decided that those factors which may be taken as implicating the applicant persuaded him beyond reasonable doubt that the applicant was the perpetrator. The submissions of the parties 1. Ms Graham of Counsel who appeared for the applicant relied upon a combination of circumstances as constituting the necessary special or exceptional circumstances to justify the grant of appeals bail. In broad terms those circumstances were: 1. the apparent merit of the applicant's case on appeal; 2. the consideration that he has been in custody since 22 July 2020 and has not received the course of treatment he was receiving while at liberty in the community to treat his pre-existing established condition of post-traumatic stress disorder related to very traumatic events preceding the alleged offending by some years; and 3. his obvious merit as a candidate for bail considering the mandatory s 18 considerations. 1. The learned Crown Prosecutor accepted that special or exceptional circumstances may be found in a combination of factors or in the coincidence of a number of features. She pointed out that the two most common features relied upon in successful applications for bail pending an appeal are the strength of the grounds of appeal and the possibility of the applicant serving the whole or a substantial part of the non-parole period of the sentence before finalisation of the appeal. She submitted that where the strength of the proposed appeal was the sole or central factor relied upon it was generally for the applicant to demonstrate that his appeal was "most likely to succeed", or, arguably, "certain to succeed": R v Wilson (1994) 34 NSWLR 1 at 6 (Kirby P; Sheller JA agreeing); and at 7 per Hunt CJ at CL; Petroulias v R [2010] NSWCCA 95 at [34]; El-Hilli at [25]-[26], [29]). Where the merit of the appeal is put forward as one of a number of factors, the Crown accepted it is sufficient that the appeal is fairly arguable or enjoys reasonable prospects of success. 2. The Crown argued that its case at trial was strong and the grounds propounded are not fairly arguable. It was submitted that the other circumstances relied upon, either individually, or in combination did not amount to a sufficient basis to grant bail. It was submitted that the applicant's untreated PTSD was not sufficient given that the evidence established that he had made only one request for the provision of the appropriate treatment. Consideration 1. In Giordano in the course of reasoning (at 243) that the totality of the circumstances must be looked at when determining an application for appeals bail, King CJ said at (242): Before and during trial, the primary, although not the only, consideration is whether the applicant will appear when required to do so. This consideration has only a minor bearing on the grant of bail after conviction. Obviously bail after conviction would not be granted unless the circumstances were such as would have indicated bail before and during the trial. After conviction, however, other cogent factors also come into consideration. 1. Although Ms Graham does not rely solely or centrally upon the strength of the applicant's appeal, it is worth making further reference to Wilson. It will be recalled that that was a case where the focus of the bail application was on the strength of the appeal. Even then, Kirby P said (at 6): It is important that, in this application, this Court should not pre-judge the arguments which the applicant intends to advance before the Court of Criminal Appeal. Hunt CJ at CL, who propounded the "certain to succeed" test, also said the appeal must be "one which can be seen without detailed argument to be certain to succeed" (my emphasis). These observations in my opinion remain apposite in the present case even though the strength of the appeal is advanced as only one of a number of factors said to satisfy the special or exceptional circumstances test. That is to say, even though it may be sufficient, as one factor only, that the applicant demonstrate that "the appeal has a reasonably arguable prospect of success" (see s 18(1)(j) Bail Act), that conclusion must be demonstrable absent any need for "pre-judgment of the argument" to be made on the hearing of the appeal; it must be a conclusion that can be readily drawn "without detailed argument". 1. Obviously it would be completely inappropriate for this Court, constituted to consider a release application, to in any way second-guess the Court that will be constituted to hear the appeal on 15 February 2021. Moreover we are in no position to do so. Although we have been provided with the trial judge's judgment and the transcript of closing addresses of counsel for both the Crown and the defence below, we have not been given the whole of the record and evidence below that will be before the Court of Criminal Appeal when the appeal is heard. This is not a criticism. It would have been inappropriate to provide us with all of that material. 2. Just as the assessment of the strength of the Crown case for a bail application made before trial depends upon impressions formed from limited materials within limited time for consideration, the assessment of whether the prospect of the appeal is reasonably arguable must be made in the same, summary fashion. The hearing of an application for appeals bail is no occasion for a dress rehearsal of the appeal. Naturally the Court must be taken to the grounds of appeal and some demonstration of their merit must be undertaken, but only in brief. An application for appeals bail is not to be treated as the opportunity for a full ventilation of the argument on either side of the record. If such is necessary to make the point then, in my view, whether it can be made good for this purpose must be very doubtful. The merit of the appeal 1. The appeal, or application for leave to appeal, propounds 4 grounds. They may be summarised in the following way: 1. Ground 1: the learned trial judge failed to give himself a Murray direction; 2. Ground 2: the learned trial judge failed to give himself an appropriate reliability warning under s 165 Evidence Act 1995 (NSW) about the complainant's evidence; 3. Ground 3: the learned trial judge misunderstood and misapplied the DNA evidence; 4. Ground 4: the verdict of guilty with respect to each count of sexual assault was unreasonable and could not be supported having regard to the evidence. Ground 1 1. As the applicant's proposed written submissions on appeal accept, a direction in accordance with R v Murray (1987) 11 NSWLR 12 is not required in every prosecution for sexual assault where proof of an element of the offence depends solely on the word of the complainant. Indeed, as Simpson J (as her Honour then was) explained in Ewen v R [2015] NSWCCA 117 (at [101] – [146]), given the abrogation of the common law rule requiring a warning about the danger of convicting on the uncorroborated evidence of a complainant by s 294AA Criminal Procedure Act 1986 (NSW), great care or caution is required before a Murray direction is given in such cases. There must be something else in the evidence, other than the complainant's uncorroborated account, suggesting caution or particular scrutiny is called for to enliven the duty to give a Murray direction. 2. Moreover, as the Crown argues, although counsel appearing at the trial (not Ms Graham) raised the need for a Murray direction with the trial judge (398.25 - .30T), he appears to have conceded that such a direction was not called for in the circumstances (400.17 – 35T). If this is correct, leave will be required under Rule 4 of the Criminal Appeal Rules 1952 (NSW). I would not say the ground will not run, but its prospects cannot be assessed without detailed argument both as to leave and as its substance. Ground 2 1. It is accepted that his Honour gave himself a reliability warning under s 165 about the complainant's evidence (Judgment at [66] – [68]). However, the applicant's complaint is that it was in the most general terms and failed to deal with important reasons why a warning was required. These reasons included the effect of a high level of intoxication on witness reliability. But more importantly, the case propounded for the applicant below, drawing on a full suite of circumstances which need not be rehearsed here, was that the complaint's evidence of sexual assault was based upon a phenomenon of memory reconstruction which was "inextricably linked" to the circumstances of the offences involving a complainant who asserted an "island of memory" in a "sea of alcohol induced blackout" (Appeal Submissions at [70]). The need for an explicit direction dealing with this issue was rejected by the trial judge (Judgment at [75]). 2. The Crown argue that the direction given discharged the trial judge's obligation arising under s 133 of the Criminal Procedure Act 1986 and nothing more was required. 3. I am of the view that this ground is fairly arguable. Ground 3 1. As I understand Ms Graham's argument concerning the consideration of the DNA evidence by the learned trial judge, his Honour erred by treating it as one of the circumstances from which he drew the inference that the applicant was the perpetrator of the sexual assault which he had found by accepting the truth of complainant's account beyond reasonable doubt. Ms Graham argued that the true significance of the DNA evidence is that it was not evidence which tended to prove that the applicant was guilty because his DNA was not detected on the complainant's underwear. 2. The Crown argued that his Honour did no more than treat the DNA evidence as neutral in as much as it did not prove the applicant was the perpetrator, but nor did it exclude him. 3. I am of the view that this ground also provides a reasonably arguable prospect of success. The simple fact is that the applicant's DNA was not proved to have been deposited on the complainant's underwear which the perpetrator was alleged to have pulled down to gain access to the complainant's vagina. I appreciate that his Honour did not refer to the evidence as being "neutral", but that is the effect of what his Honour said. Moreover, he did not merely put that evidence to one side, rather he used the consideration that it did not affirmatively exclude the applicant, because there were unidentified traces of DNA which were unsuitable for further testing, as a circumstance, even if only a minor one, going to proof of his guilt. 4. It seems to me arguable that the true significance in the context of an accusatorial criminal trial of evidence said to be "neutral" is that the facts established by that evidence do not tend to prove that the accused is guilty. And if they do not tend to prove that the accused is guilty, they are matters to be weighed in the accused's favour when considering whether the whole of the circumstances affirmatively established by acceptable evidence support a conclusion that the guilt of the accused is the only rational inference open. Ground 4 1. Given what I have said about the legitimate limitations constraining this Court's opportunity to assess an appeal's prospect of success on a bail application, it is difficult to see, except in clear cases, that the Court could comfortably evaluate whether an unreasonable verdict ground is fairly or reasonably arguable. It is unnecessary to multiply references to authority. It is sufficient to refer to M v The Queen (1994) 181 CLR 487; [1994] HCA 63 where the plurality of the High Court said (at 493): "the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" bearing in mind the jury's forensic advantage in seeing and hearing the witnesses first hand (my emphasis). Given the limited materials it is proper to put before this Court on a bail application no opportunity arises to consider "the whole of the evidence". 2. Having said that, as Grounds 2 and 3 are concerned with the process of finding ultimate facts, i.e. was the complainant sexually assaulted, and if so was the applicant the assailant, I am satisfied that this is a clear case. I regard Ground 4 too, as reasonably arguable. 3. For these reasons I am satisfied that the applicant's appeal or application for leave to appeal enjoys a reasonably arguable prospect of success. I accept the Crown argument that there may yet be scope for the application of the proviso. However, without reviewing the whole of the evidence, it is impossible to assess whether the applicant lost a fair chance of acquittal due to identifiable errors of law or fact, or the prosecution was bound to succeed. The failure to afford the applicant medical treatment 1. It is common ground that when sentenced and since, the applicant has suffered a Post-Traumatic Stress Disorder (PTSD) for which he was receiving ongoing treatment prior to entering custody. A report of Dr Richard Furst, forensic psychiatrist dated 13 July 2020 tendered on the proceedings on sentence related that condition to the trauma to which the applicant was exposed on the night of 27 February 2008 when the prawn trawler, Sea Rogue, on which the applicant was crew, sank about 14 miles out to sea. The circumstances were that there was an unexplained explosion and the boat quickly capsized in the dark of night. The applicant managed to get clear of the sinking vessel and after treading water "through the night" he decided to swim to shore at dawn to obtain help. He made shore and raised the alarm but one of his friends perished at sea before rescue arrived. 2. Dr Furst is of the opinion that the applicant meets the criteria for the diagnosis of PTSD. He continues to suffer "persistent re-experienced phenomena, insomnia, hyperarousal and emotional numbing" following the life-threatening episode (p.6). Dr Furst regarded the applicant's symptoms and resulting functional impairment as "indicative of severe and chronic [PTSD]" (p.6). Dr Furst also expressed the view that if the applicant received a custodial sentence, as he did, it would be appropriate for him to be placed under the care of a psychiatrist and mental health nurse within Justice Health in relation to his treatment needs, together with a continuation of the medication prescribed by his treating doctors. 3. It is common ground that despite a request for treatment, no treatment has been afforded to the applicant in custody in accordance with these recommendations. 4. The Crown argue that given only one request for treatment has been made, the failure for it to be afforded to the applicant cannot of itself amount to special or exceptional circumstances. 5. Ms Graham does not suggest that of itself this circumstance amounts to special or exceptional circumstances. However, it is a factor of some salience which is not diminished by the consideration that the applicant has not made repeated requests to be afforded the relevant treatment. 6. It is difficult to understand why the applicant has not been afforded this necessary treatment given Dr Furst's recommendation and the consideration that the prescription is hardly complex or difficult to achieve. I accept the necessary treatment, on this evidence, would be more readily available in the community if the applicant were on bail and that this is a factor relevant to the special or exceptional circumstances requirement. General bail considerations 1. There is no doubt that the applicant was, and is, a good candidate for bail. He has no criminal record of any concern and has positive evidence of prior good character. He was granted bail before and during the trial until sentence. There is not the slightest suggestion that the bail was ever breached. His mental condition is a significant factor telling in favour of a grant of bail, as I have said. 2. Given that he has now been convicted and sentenced there is, as the Crown submitted, a legitimate concern that the applicant may be tempted to breach his bail undertaking rather than run the risk of a return to custody if the appeal, in the event, is unsuccessful. However, I am of the view that this concern can be adequately managed by the type of conditions that have been proposed including his parents' promise to forfeit a large sum of money if he breaches the bail acknowledgement, residence with his parents and moderately frequent reporting requirements. I am not satisfied that there is any unacceptable risk. Decision 1. I am satisfied that this combination of factors discharges the applicant's onus of demonstrating special or exceptional circumstances justifying his release to appeals bail. It follows from what I have already said that by application of the unacceptable risk test there is no unacceptable risk of the materialisation of any bail concern. Accordingly, the Court is not required to refuse bail and bail should be granted conditionally. 2. In my view the Court should make the following orders: 1. Bail is granted subject to the following conditions: 1. The applicant is to be of good behaviour; 2. He is to reside at XXXXXXXXXXXXXX, New South Wales with his father, Donald Williams and his mother, Fay Williams; 3. He is to report to Yamba Police Station once each Monday, Wednesday and Friday between the hours of 7 am and 7 pm; 4. He is to appear at the Court of Criminal Appeal, Law Courts Building, Queens Square Sydney on the hearing of the appeal on 15 February 2021 and thereafter as required; 5. He is not to consume alcohol; 6. He is not to communicate by any means with any Crown witness including, the complainant and he is to strictly and completely comply with any Apprehended Violence Order currently in force for the protection of the complainant; 7. He is not to apply for any new passport or travel document and he is not to go within 500 metres of any point of departure from the Commonwealth of Australia. He is not to enter any international airport terminal; 8. One or more acceptable persons is to enter into an agreement under which he or she agrees to forfeit the total sum of $35,000 if the applicant fails to appear before the Court in accordance with the bail acknowledgment; 9. The applicant is to consult Dr Dalgleish or another general medical practitioner of his choice about his mental health condition within 48 hours of his release to bail and comply with the course of treatment prescribed. A certificate demonstrating that he has attended as required is to be provided to the officer in charge when he next reports after the consultation; 10. The security requirement is a pre-release requirement for the purpose of s 29 of the Bail Act 2013 (NSW) which must be complied with before the applicant is released to bail. ********** Amendments 17 December 2020 - Paragraph 46(b) Address redacted Paragraph 46(f) Named complainant - changed to "complainant" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2020